Tag Archives: Comparative Negligence

“This appeal requires us to answer a question that has perplexed courts for some time: Whether a plaintiff is entitled to partial summary judgment on the issue of a defendant’s liability, when, as here, defendant has arguably raised an issue of fact regarding plaintiff’s comparative negligence. Stated differently, to obtain partial summary judgment in a comparative negligence case, must plaintiffs establish the absence of their own comparative negligence. We hold that a plaintiff does not bear that burden.” Rodriguez v City of New York, 2018 NY Slip Op 02287, Decided on April 3, 2018, New York Court of Appeals. Feinman, J.

Vehicle and Traffic Law §1104 governs the conduct of the driver of an authorized emergency vehicle**, when involved in an emergency operation. And subsection (e) precludes the imposition of tort liability except where the conduct rises to the level of recklessness.

V&TL §1104(e) provides that: “The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others.”

In Ayers v O’Brien, decided on December 17, 2009, a unanimous Court of Appeals held that an emergency vehicle operator may not assert that statute in an action in which he is the plaintiff, to prevent the defendant from raising a comparative fault defense based upon mere negligence and assumption of the risk.

The Court, by way of a footnote, citing Aldrich v Sampier, 2 AD3d 1101, 1103 (3d Dept 2003), points out that had a viable claim been made under General Municipal Law § 205-e, the result would have been different as comparative fault is not a defense in a General Municipal Law § 205-e action.